Nene v Road Accident Fund

• Jurisdiction: South Africa
• Judge: Van Zyl J
• Citation: 2009 JDR 0012 (EL)
• Court: East London Local Division
• Docket Number: EL 352/02 and ECD 1021/2002

Van Zyl J:

[1]

The plaintiff has instituted action against the defendant in terms of the Road Accident Fund Act 56 of 1996 for damages in the sum of R993 798.59. The claim is for the costs of a personal attendant, future medical expenses, past and future loss of income and general damages arising from bodily injuries sustained by the plaintiff in a motor collision on 29 September 1997 on the East London / Mdantsane access road.

[2]

The defendant conceded liability to compensate the plaintiff for 80 percent of his damages. The only issue in dispute is the quantum of such damages. At the commencement of the trial the parties informed the Court that insofar as future medical expenses are concerned, the defendant will furnish plaintiff with an undertaking in terms of section 17(4) (a) of the Road Accident Fund Act. The Court was further informed that the question of costs of a personal attendant is accepted by both parties to be an item of future medical expenses

2009 JDR 0012 p2

Van Zyl J

which, if it is required and incurred by plaintiff, will be covered by the said certificate. It is accordingly not necessary to make any further finding in regard thereto.

[3]

At the end of the trial the only outstanding issues were the following:

(a)

The quantum of the plaintiff's damages for past loss of earnings and future loss of earning capacity. The parties were in agreement on the quantum of the unadjusted past and future loss of income of the plaintiff. They both accepted the figure of R563 737-00, calculated by Dr Robert Koch, the actuary engaged by plaintiff (Exhibit D). This figure is made up of R191 994-00 for loss of past income and R371 743-00 for loss of future income. It was left to me to decide to what extent allowance should be made for contingencies.

(b)

The quantum of the plaintiff's damage claimed under the head of general damages.

[4]

After the conclusion of the trial and before judgment the parties informed the Court that agreement was also reached in regard to plaintiff's claims for past and future loss of income. The effect thereof is that the plaintiff accepts the defendant's submission that a contingency deduction of 10 percent for past loss of income and 15 percent for future loss of income. The result is that the figure for past loss of income, namely R191 994-00 is to be reduced by 10 percent to R172 794-60 and the figure for future loss of income, R371 743-00, must be reduced by 15 percent to R315 981-55. This must in turn be reduced by 20 percent in accordance with the agreed apportionment to R138 235-68 and R252 785-24 respectively.

[5]

The only issue that therefore remains is that of the quantum of the plaintiff's general damages. The nature and extent of the plaintiff injuries, the treatment received by him, the prognosis and sequelae thereof are largely undisputed. The evidence in respect thereof appears from the medico-legal reports of the two orthopaedic surgeons, Dr Olivier and Dr Berkowitz who were instructed

2009 JDR 0012 p3

Van Zyl J

for the plaintiff and the defendant respectively. The report by a dental surgeon, Dr Uys tendered on behalf of the plaintiff in respect of the loss of certain teeth by the plaintiff, was admitted by the defendant. The plaintiff...